J. Chrzanowski v. WCAB (Philadelphia Parking Authority) ( 2021 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
John Chrzanowski, :
:
Petitioner :
:
v. : No. 590 C.D. 2020
: Submitted: October 23, 2020
Workers’ Compensation Appeal :
Board (Philadelphia Parking :
Authority), :
:
Respondent :
BEFORE: HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE J. ANDREW CROMPTON, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE WOJCIK FILED: July 16, 2021
John Chrzanowski (Claimant) petitions for review of the June 10,
2020 order of the Workers’ Compensation Appeal Board (Board), which affirmed
the decision of a workers’ compensation judge (WCJ) granting Claimant’s claim
petition for the period of December 16, 2017, through May 3, 2018, and denying
Claimant’s penalty petition. Upon review, we affirm.
On January 18, 2018, Claimant filed a claim petition alleging that he
suffered injuries from a car accident on December 16, 2017, during the course and
scope of his employment as a tow truck driver with the Philadelphia Parking
Authority (Employer). Reproduced Record (R.R.) at 1a-5a. Claimant also filed a
penalty petition, alleging that Employer violated the Workers’ Compensation Act
(Act)1 by failing to issue documents and pay indemnity benefits. Id. at 9a-12a.
Employer filed an answer denying the relevant allegations in Claimant’s penalty
petition. Id. at 14a.
The WCJ held several hearings, at which Claimant testified on his
own behalf and presented the deposition testimony of Dr. Rodriguez, a board-
certified internist, and Dr. Cohen, a board-certified neurologist. Employer
presented the testimony of Colin Hand, the other driver involved in the accident,
and Joann Hand, Colin Hand’s mother. Employer also presented the deposition
testimony of Dr. Mandel, a board-certified orthopedic surgeon.
Claimant testified that, while at work on December 16, 2017, his
parked, 18,000-pound tow truck was struck by a vehicle while he was sitting in the
cab. R.R. at 34a; 41a. Claimant testified that his tow truck was forced into the air
and up onto the curb. Id. at 34a. Claimant admitted that he told his supervisor,
John Daly, at the scene of the accident that he was not injured. Id. at 49a.
Claimant testified that when he returned to Employer’s parking lot and filled out an
accident report, he informed Mr. Daly that he was experiencing back pain. Id.
Claimant stated that he sought treatment for his back pain first from an urgent care
center and then from Employer’s doctor. Id. at 36a. Claimant testified that
Employer’s doctor treated him with ibuprofen and sent him back to work. Id. at
38a. Claimant testified that he stopped working on December 25, 2017, due to
intense pain in his neck, shoulders, mid back, lower back, and right leg. Id. at 39a.
Claimant then sought treatment from Dr. Rodriguez. Id. at 40a. Claimant testified
1
Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§1-1041.4, 2501-2710.
2
that he can no longer perform his job duties as a tow truck driver and has ceased to
operate his business as a carpenter due to his work injury. R.R. at 41a-43a.
Claimant testified that he has received three injections to his neck and
back for pain, but that his condition has only improved by 10%. R.R. at 66a-73a.
Claimant testified that he continues to suffer from pain radiating down both of his
arms and his right leg, headaches, and back pain. Id. at 67a. Claimant admitted
that he is spending most of his time at his beach house in Egg Harbor, New Jersey,
and drives 60 miles to and from Philadelphia 3 times a week for appointments with
Dr. Rodriguez. Id. at 78a-79a.
Colin Hand testified that he was the driver of the other vehicle
involved in the accident on December 16, 2017. R.R. at 101a. Hand testified that
his steering wheel locked, causing his car to drift into the driver’s side front wheel
of Claimant’s tow truck at about 10 to 15 miles per hour. Id. at 103a-05a. Hand
stated that he disagreed with Claimant’s testimony that the tow truck was lifted
into the air in the accident. Id. at 109a. Hand said that his vehicle pushed
Claimant’s tow truck a couple of inches closer to the curb, but did not cause the
tow truck to strike the curb. Id. at 109a-10a. Hand testified that Claimant told him
that he was okay immediately after the accident. Id. at 111a-13a; 120a.
Joann Hand, Colin Hand’s mother, testified that she spoke to Claimant
on the phone after the accident. R.R. at 125a. She testified that Claimant denied
being injured. Id. She also stated that she was at the scene of the accident for an
hour and 20 minutes and that she did not observe any injuries to Claimant. Id. at
127a.
Dr. Rodriguez testified that she began treating Claimant on January 2,
2018. R.R. at 180a. Dr. Rodriguez testified that after examining Claimant, she
3
diagnosed him with a strain and sprain of the lumbar spine, a sprain and strain of
the cervical spine, post traumatic headaches, and a sprain and strain of the thoracic
area. Id. at 186a-87a. Dr. Rodriguez testified that magnetic resonance imaging
(MRI) of Claimant performed on January 9, 2018, revealed a cervical syrinx at C6-
C7, an annular tear a L4-L5, and degenerative changes, including osteophytes and
disc bulges. Id. at 188a-89a. Dr. Rodriguez testified that based on the MRI and
Claimant’s medical history, it was her opinion that Claimant’s injuries were
causally related to the work accident. Id. at 188a-191a. Dr. Rodriguez testified
that Claimant could not return to his pre-injury position because of the injuries that
he sustained in the work accident. R.R. at 197a.
Dr. Cohen testified that he began treating Claimant on February 7,
2018, upon a referral from Dr. Rodriguez. R.R. at 267a. Dr. Cohen took a medical
history, examined Claimant, and ordered diagnostic tests. Id. at 270a-71a. Dr.
Cohen opined that Claimant had cervical radiculopathy at the C4-C6 level and
lumbar radiculopathy at L4-L5. Id. at 276a. Dr. Cohen testified that Claimant
received injections for pain management. Id. at 277a. Dr. Cohen opined that
Claimant’s injuries were related to the work accident and that Claimant is unable to
return to work. Id. at 280a-82a; 299a.
Dr. Mandel testified that he conducted an independent medical
examination (IME) of Claimant on May 3, 2018. R.R. at 359a. Dr. Mandel took
Claimant’s medical history, reviewed Claimant’s medical records, and examined
Claimant. Id. at 360a-62a; 371a. Dr. Mandel testified that Claimant complained of
pain at a level of 10, on a scale of 1 to 10, which Dr. Mandel found unreasonable
based on his symptoms and the time since the accident. Id. at 362a-63a. Dr.
Mandel opined that Claimant’s abnormalities on diagnostic tests are degenerative
4
in nature and are unrelated to the work accident. Id. at 378a. Dr. Mandel testified
that Claimant could return to his job duties without any limitation or restriction.
Id.
On July 10, 2019, the WCJ granted Claimant’s claim petition for the
period of December 16, 2017, to May 3, 2018, denied Claimant’s penalty petition,
and ordered Employer to reimburse Claimant $9,060.15 in litigation costs. R.R. at
429a.2 The WCJ also approved Claimant’s counsel’s 20% contingent fee, and
awarded Claimant’s counsel “an unreasonable contest fee equal to the contingent
fee of 20% calculated on all indemnity benefits awarded, including interest, such
fee is not chargeable to Claimant’s benefits.” Id. In doing so, the WCJ found that
Claimant met his burden of showing that he sustained a work injury on December
16, 2017. Id. However, the WCJ found that Claimant had fully recovered from all
work injuries as of May 3, 2018. Id. The WCJ discredited Claimant’s testimony
regarding the severity of the accident and credited Colin Hand and Joann Hand’s
testimony. Id. Regarding the nature and extent of Claimant’s injuries, the WCJ
credited Dr. Mandel’s testimony, credited Dr. Rodriguez’s testimony, in part, and
discredited Dr. Cohen’s testimony. Id.
Both Claimant and Employer appealed the WCJ’s decision to the
Board. On June 10, 2020, the Board affirmed the WCJ’s decision. Claimant now
petitions this Court for review.3
2
The WCJ circulated an amended decision and order on July 22, 2019, correcting a
typographical error in the termination date from May 3, 2016, to May 3, 2018. R.R. at 432a-33a.
3
Our scope of review is limited to determining whether constitutional rights were
violated, whether the adjudication is in accordance with the law, and whether necessary findings
of fact are supported by substantial evidence. Section 704 of the Administrative Agency Law, 2
Pa. C.S. §704.
5
Issues
On appeal, Claimant argues that the Board erred in failing to address
the WCJ’s capricious disregard of all of the record evidence by merely conducting
a “substantial evidence” review of the evidence relied upon by the WCJ. Claimant
also asserts that the WCJ failed to rely on “actual, objective” criteria in making his
credibility determinations, which are not supported by substantial evidence.
Finally, Claimant contends that the WCJ improperly, sua sponte reduced the
amount of attorney fees. Upon review, we disagree.
Analysis
Preliminarily, we note that in a claim petition proceeding, the claimant
bears the burden of proving all of the elements necessary to support an award,
including the duration and extent of the disability. Inglis House v. Workmen’s
Compensation Appeal Board (Reedy), 634 A.2d 592, 594 (Pa. 1993). “It is well
established that the WCJ is the ultimate fact finder and is empowered to determine
witness credibility and evidentiary weight.” Griffiths v. Workers’ Compensation
Appeal Board (Red Lobster), 760 A.2d 72, 76 (Pa. Cmwlth. 2000). As the ultimate
fact finder, the WCJ’s findings are binding on appeal if they are supported by
substantial evidence. Moore v. Workmen’s Compensation Appeal Board (Reading
Paperboard Corporation), 652 A.2d 802, 805 (Pa. 1995). “Substantial evidence
has been defined as such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.” Id.In addition, a review for capricious disregard of material, competent
evidence is an appropriate component of appellate review in any case in which the
question is properly raised before a court. Leon E. Wintermyer, Inc. v. Workers’
6
Compensation Appeal Board (Marlowe), 812 A.2d 478, 487 (Pa. 2002); see Diehl
v. Unemployment Compensation Board of Review, 4 A.3d 816, 824 (Pa. Cmwlth.
2010), reversed on other grounds, 57 A.3d 1029 (Pa. 2012). A capricious
disregard of evidence occurs where the “findings reflect a deliberate disregard of
competent evidence that logically could not have been avoided in reaching the
decision . . . .” Pryor v. Workers’ Compensation Appeal Board (Colin Service
Systems), 923 A.2d 1197, 1205 (Pa. Cmwlth. 2007). Where substantial evidence
supports the findings, and those findings in turn support the conclusions, it should
remain a rare instance where an appellate court disturbs an adjudication based on
capricious disregard. Wintermyer, 812 A.2d at 487. Thus, capricious disregard of
evidence occurs when the fact finder ignores relevant, competent evidence.
Williams v. Workers’ Compensation Appeal Board (USX Corp.-Fairless Works),
862 A.2d 137, 145 (Pa. Cmwlth. 2004). Capricious disregard does not exist when
a WCJ has considered and rejected evidence. Id.Claimant first argues that the WCJ capriciously disregarded
overwhelming evidence in rendering his decision. We disagree. Based on the
evidence, the WCJ found as fact:
12. This [WCJ] has reviewed Claimant’s testimony
and finds it credible, in small part. This [WCJ] bases this
determination, in part, on Claimant’s demeanor and
deportment while testifying live. Claimant’s testimony
as to his wages and the occurrence of the accident to be
credible as it is supported, in some measure, by the
testimony of Colin Hand and [Joann] Hand. The extent
of the accident, as described by Claimant, is not believed.
The photographs, the extent of damage shown, the
respective weights of the vehicles, and the low speed of
the accident (which did not even result in the deployment
of Mr. Hand’s airbag), evidence a low impact accident as
compared to the jarring, violent impact testified to by
7
Claimant. Claimant’s testimony as to the nature and
extent of any injuries he suffered is also discredited as [it
relies] initially on an inaccurate history of the accident
but also Claimant’s complaints of continued, unabated
pain are not credible given the credited testimony of Dr.
Richard Mandel and his own continued, long-duration
travels to and from New Jersey.
13. This [WCJ] has reviewed the testimony of Colin
Hand and [Joann] Hand and finds both to be credible.
The testimony was clear and unembellished without the
apparent taint of secondary gain. This [WCJ] bases this
determination on their demeanor and deportment while
testifying live.
14. There is no dispute that this accident occurred and
this [WCJ] believes, from the evidence submitted, that
Claimant did suffer some injury, which necessitated him
to treat with AtlantiCare Urgent Care Center and Aria
Health. The question then remains: To what extent was
Claimant injured? After reviewing the testimony of [Dr.
Rodriguez], [Dr. Cohen], and [Dr. Mandel], this [WCJ]
finds the testimony of Dr. Rodriguez credible in part, the
testimony of Dr. Cohen not credible, and the testimony of
Dr. Mandel credible.
a. Dr. Rodriguez’s testimony regarding the
Claimant’s injuries is accepted in part. As she was
Claimant’s initial treating physician, this [WCJ]
affords Dr. Rodriguez some measure of credibility;
however, where Dr. Rodriguez found any injuries
beyond strains and sprains of the cervical and lumbar
spine, her testimony is rejected. This [WCJ] notes
that Dr. Rodriguez, like Dr. Cohen, bases her opinions
of the extent of Claimant’s injuries upon an inaccurate
description of the accident. Her attribution of post-
concussion symptoms despite doubt as to whether
Claimant struck his head (an occurrence even
Claimant cannot verify) is problematic. Furthermore,
Dr. Rodriguez’s opinions as to the aggravation or
exacerbation of Claimant’s pre[]existing degenerative
arthritis is simply not borne out by the diagnostic
studies, as clearly explained by Dr. Mandel.
8
b. Dr. Cohen’s testimony, ostensibly produced as
rebuttal and, in this [WCJ’s] estimation, to extend a
finding of disability beyond the date of Dr. Mandel’s
[IME], is rejected. Dr. Cohen’s diagnoses rely on
Claimant’s inaccurate (and rejected) description of the
accident. As such, this [WCJ] similarly rejects Dr.
Cohen’s testimony.
c. Dr. Mandel’s testimony, regarding Claimant’s
status as of May 3, 2018, is accepted. Dr. Mandel
clearly, cogently, and credibly explained the findings
on the cervical and lumbar MRI and their (non-)
relation to Claimant’s injury. The degenerative nature
of the findings was clearly and credibly explained by
Dr. Mandel, who likewise credibly related the lack of
ongoing injury to Claimant’s December 16, 2017
accident, as such Claimant is deemed to have fully
recovered from any injuries he may have suffered.
R.R. at 424a-25a.
Contrary to Claimant’s assertion, as outlined above, the WCJ
considered and rejected Claimant’s evidence regarding the severity of the accident
and found “Claimant fully recovered from all work injuries as of May 3, 2018.”
R.R. at 426a. This rejection of Claimant’s evidence does not constitute a
capricious disregard of such evidence. See, e.g., Williams, 862 A.2d at 145 (“[T]he
WCJ did not deliberately ignore Dr. Landes’s testimony—as evidenced by the
WCJ’s extensive summation thereof in Finding [of Fact] 6, which includes a
summation of Dr. Landes’s testimony on direct and cross-examinations—but
merely considered, and then rejected as not credible, said evidence. Such an
express consideration and rejection, by definition, is not capricious disregard.”).
As a result, the Board did not err in affirming the WCJ decision.
Next, Claimant argues that the WCJ’s credibility determinations are
not supported by substantial evidence. However, as articulated above, the WCJ is
9
the ultimate fact finder, and as such has complete authority over credibility
determinations and the weighing of evidence. Griffiths, 760 A.2d at 76. It is well
settled that where medical experts testify by deposition, a WCJ’s resolution of
conflicting evidence must be supported by more than a statement that one expert is
deemed more credible than another. Dorsey v. Workers’ Compensation Appeal
Board (Crossing Construction Co.), 893 A.2d 191, 194-95 (Pa. Cmwlth. 2006).
“Some articulation of the actual objective basis for the credibility determination
must be offered for the decision to be a ‘reasoned’ one which facilitates effective
appellate review.” Id. at 194-95 (quoting Daniels v. Workers’ Compensation
Appeal Board (Tristate Transport), 828 A.2d 1043, 1053 (Pa. 2003)). There are
countless objective factors that may support a WCJ’s credibility determinations,
and such factors must be identified in the WCJ’s decision. Dorsey, 893 A.2d 195.
Nevertheless, we have repeatedly stressed that Section 422(a) of the
Act4 does not permit a party to challenge or second-guess a WCJ’s reasons for
4
Section 422(a) of the Act states that
[a]ll parties to an adjudicatory proceeding are entitled to a reasoned
decision containing findings of fact and conclusions of law based
upon the evidence as a whole which clearly and concisely states
and explains the rationale for the decisions so that all can
determine why and how a particular result was reached. The
workers’ compensation judge shall specify the evidence upon
which the workers’ compensation judge relies and state the reasons
for accepting it in conformity with this section. When faced with
conflicting evidence, the workers’ compensation judge must
adequately explain the reasons for rejecting or discrediting
competent evidence. Uncontroverted evidence may not be rejected
for no reason or for an irrational reason; the workers’
compensation judge must identify that evidence and explain
adequately the reasons for its rejection. The adjudication shall
provide the basis for meaningful appellate review.
(Footnote continued on next page…)
10
credibility determinations. Id.; Kasper v. Workers’ Compensation Appeal Board
(Perloff Brothers, Inc.), 769 A.2d 1242, 1244 (Pa. Cmwlth. 2001). In Kasper, we
declined the claimant’s “invitation to individually scrutinize each of the WCJ’s
reasons for his credibility determination.” Id. We explained that
[d]eciding credibility is the quintessential function of the
fact-finder, particularly one who sees and hears the
testimony. It is not an exact science, and the ultimate
conclusion comprises far more than a tally sheet of its
various components. We will not take the statutory
mandate that a WCJ explain reasons for discrediting
evidence as a license to undermine the exercise of this
critical function by second guessing one or more of its
constituent parts.
Id. (footnote omitted).
In contrast, where, as here, Claimant and Colin Hand and Joann Hand
testified in person before the WCJ, the WCJ could base his credibility
determinations upon his observation of these witnesses during the course of their
testimony. As our Supreme Court has explained:
[W]hen the issue involves the credibility of contradictory
witnesses who have actually testified before the WCJ, it
is appropriate for the [WCJ] to base his or her
determination upon the demeanor of the witnesses. In
such an instance, there often is not much to say, nor is
there a need to say much, in order for a reviewing body
to determine that the decision was reasoned. Such a
credibility determination may involve nothing more than
the fact[]finder’s on-the-spot, and oftentimes instinctive,
determination that one witness is more credible than
another. The basis for the conclusion that certain
(continued…)
77 P.S. §834(a).
11
testimony has the “ring of truth,” while other testimony
does not, may be difficult or impossible to articulate—
but that does not make such judgments invalid or
unworthy of deference. To the contrary, people routinely
undertake affairs of consequence based upon their
judgment of the credibility and reliability of others, or
their assessment of the mettle and character of the
persons with whom they are dealing.
Daniels, 828 A.2d at 1052-53. In sum then, unless made arbitrarily or
capriciously, a WCJ’s credibility determinations will not be disturbed when the
basis for such is present in the record on appeal. Empire Steel Castings, Inc. v.
Workers’ Compensation Appeal Board (Cruceta), 749 A.2d 1021, 1027 (Pa.
Cmwlth. 2000); PEC Contracting Engineers v. Workers’ Compensation Appeal
Board (Hutchinson), 717 A.2d 1086, 1089 (Pa. Cmwlth. 1998).
After careful review of the certified record in this matter, we conclude
that the WCJ’s credibility determinations are supported by ample substantial
record evidence. Moreover, as outlined above, the WCJ extensively and
exhaustively outlined the reasons for his credibility determinations, and, as a result,
these determinations are not subject to our appellate review. Thus, we find the
Board did not err by affirming the WCJ’s decision in this regard.
Finally, Claimant argues that the WJC improperly, sua sponte reduced
the award of attorney fees in this case. Again, we disagree. “Section 440(a) of the
Act,[5] provides that where a claimant succeeds in a litigated case reasonable
5
Added by Section 3 of the Act of February 8, 1972, P.L. 25, 77 P.S. §996(a). Section
440(a) provides:
In any contested case where the insurer has contested liability in
whole or in part, including contested cases involving petitions to
terminate, reinstate, increase, reduce or otherwise modify
compensation awards, agreements or other payment arrangements
or to set aside final receipts, the employe or his dependent, as the
(Footnote continued on next page…)
12
counsel fees are awarded against the employer, as a cost, unless the employer
meets its burden of establishing facts sufficient to prove a reasonable basis for the
contest.” United States Steel Corporation v. Workers’ Compensation Appeal
Board (Luczki), 887 A.2d 817, 820 (Pa. Cmwlth. 2005). “A reasonable contest is
established when medical evidence is conflicting or susceptible to contrary
inferences, and there is an absence of evidence that an employer’s contest is
frivolous or filed to harass a claimant.” Id. The imposition of attorney fees is a
question of law reviewable by the Board and this Court based upon the record.
McGoldrick v. Workmen’s Compensation Appeal Board (Acme Markets, Inc.), 597
A.2d 1254, 1257 (Pa. Cmwlth. 1991).
In this case, the WCJ held that Employer’s contest was unreasonable
from January 18, 2018, until May 8, 2018, because Employer was aware of the
accident and directed Claimant to seek treatment for the injuries related thereto.
R.R. at 426a-29a. However, the WCJ explained:
Claimant submitted a quantum meruit itemization of 4.4
hours (work performed between January 18, 2018, until
May 3, 2018[,]) at a rate of $300 an hour; however, this
[WCJ] finds such fee insufficient given the circumstances
and, instead, awards an unreasonable contest fee equal to
Claimant’s counsel’s contingent fee of 20%. Claimant’s
(continued…)
case may be, in whose favor the matter at issue has been finally
determined in whole or in part shall be awarded, in addition to the
award for compensation, a reasonable sum for costs incurred for
attorney’s fee, witnesses, necessary medical examination, and the
value of unreimbursed lost time to attend the proceedings:
Provided, That cost for attorney fees may be excluded when a
reasonable basis for the contest has been established by the
employer or the insurer.
13
counsel contingent fee agreement is approved.
Claimant’s counsel is entitled to a 20% contingent fee
calculated on all indemnity benefits awarded, including
interest, such fee is not chargeable to Claimant’s benefits.
Id. at 426a; see also id. at 429a (“Claimant’s counsel is awarded an unreasonable
contest fee equal to the contingent fee of 20% calculated on all indemnity benefits
awarded, including interest, such fee is not chargeable to Claimant’s benefits.”).
In affirming the WCJ’s decision in this respect, the Board explained:
Regarding Claimant’s contention that his [attorney] fees
were reduced, we fail to see how the WCJ reduced the
[attorney] fees as the WCJ awarded a higher fee than the
4.4 hours that Claimant’s attorney worked during the
time period in question. If Claimant is arguing that he
should be entitled to the full amount of 22.3 hours, we
would also disagree because the WCJ found that
[Employer’s] contest was reasonable after the IME was
performed. Therefore, the WCJ did not err.
R.R. at 465a. We agree with the Board and discern no error of law in the WCJ’s
decision in this regard.
Accordingly, the Board’s order is affirmed.
MICHAEL H. WOJCIK, Judge
Judge Fizzano Cannon did not participate in the decision of this case.
14
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
John Chrzanowski, :
:
Petitioner :
:
v. : No. 590 C.D. 2020
:
Workers’ Compensation Appeal :
Board (Philadelphia Parking :
Authority), :
:
Respondent :
ORDER
AND NOW, this 16th day of July, 2021, the June 10, 2020 order of the
Workers’ Compensation Appeal Board in the above-captioned matter is
AFFIRMED.
__________________________________
MICHAEL H. WOJCIK, Judge